and Your Family
New York Witness Not of Sound Mind
A will contest is a legal objection to a will based on the will not be valid. There are a number of common legal grounds for challenging a will. The include lack of testamentary capacity of testator, improper execution, duress, fraud, and undue influence. Most will challenges focus on testator’s competency and free will in making the will. Will challenges also focus on the formal requirements of executing a will. One basis for challenging a will that is less common than others is based on the competency of a witness. In other words, contesting the will based o an allegation that the witness not being of sound mind. To win a will contest based on witness not of sound mind, the person objecting to the will must present sufficient proof of the witness’ lack of mental capacity. To learn more about challenging a will, contact an experienced New York will contest lawyer at the Law Offices of Stephen Bilkis & Associates.Witness requirement
Under New York law, in order for a will to be valid, it must have been executed in the manner specified. According to New York Estates, Powers & Trust Law, the will must be signed at the end by the testator, or the will must be signed at the end by someone else at the direction of the testator in the presences of the testator. The law also specifies that there must be two witnesses who are present at the signing of the will and the testator must communicate to the witnesses that they are witnessing the signing of his (or her) will. Thus, the witnesses are in integral part of the execution ceremony. Without witnesses the will is not valid.
Not just anyone can serve as a witness. A witness to a will must be qualified and competent. This means that the witness must be at least 18 years old. Otherwise the witness would be incompetent due to infancy. Under New York Estates, Powers and Trusts Law § 3-3.2, an attesting witness cannot also be a beneficiary. In order to be an attesting witness, the disposition made to an attesting witness is void.
In addition, just like the testator must be mentally competent at the time he (or she) executes his will, the witnesses must also be competent.Testamentary capacity requirement
Under New York law, in order to make a valid will, at the time the will is executed, testator must have the testamentary capacity to do so. This means that the testator must be at least 18-years-old and that the testator must have the mental ability at the time he executes his (or her) last will and testament to understand what it means to make a will. While the age requirement is rarely the basis of estate litigation, the mental ability requirement is. Section 3-1.1 of New York’s Estates, Powers & Trusts Law refers to having the mental ability to make a will as being of “sound mind and memory.” While the statute does not give detail as to what it mean to have “sound mind and memory,” the Surrogate’s Court has provided guidance.
According to In the Matter of the Estate of Olga J. Slade, 106 A.D.2d 914 (1984), the test for mental capacity is (1) whether the testator understood the nature and consequences of executing a will; (2) whether the testator knew the nature and extent of the property that he (or she) was disposing of; and (3) whether the testator knew those who would be considered the natural objects of his bounty and his relations with them.
In Slade, the will was successfully challenged on the basis of lack of testamentary capacity. The court found that although the testator had assets worth about $650,000, she thought her estate was worth about $10,000. She was not able to care for finances, and she had been diagnosed with degenerative dementia.
The executor, who was the proponent of the will, presented evidence from the testator’s doctor to support her position that the testator had mental capacity to make the will. While medical evidence can be used to support a claim of mental capacity, in this case the court rejected the evidence from the testator’s doctor. The particular doctor on whom the proponent relied did not personally examine the testator and did not discuss her condition with any of her attending physicians or nurses. Furthermore, the testator’s records showed that at year before she made the new will, she was diagnosed with a degenerative form of dementia.Challenging a will for lack of testamentary capacity
As an experienced New York lack of testamentary capacity lawyer will explain, the process for challenging a will for lack of testamentary capacity begins when a will is offered by the named executor for probate. At that point those with an interest in the estate are notified of the probate proceeding and given the opportunity to respond. If an interested party such as a beneficiary or heir believes that the will is invalid for lack of mental capacity, he (or she) can file an objection to probate. The court will review evidence presented by both the objectant—the party objecting to the will, and the proponent—the party advocating for the will—typically the executor.
Objections to a will made on the basis of lack of testamentary capacity are typically due to the allegations that the testator suffered from a condition that results in decreased cognitive ability such as Alzheimer’s, vascular dementia, Parkinson’s disease, organic brain syndrome, and frontotemporal dementia. However, a claim of lack of mental capacity can also be based on being intoxicated. If a testator is so drunk that at the time of executing the will that he cannot pass the tests for being of “sound mind and memory,” then the testator would not have the testamentary capacity to make a will.Proving lack of testamentary capacity
A person seeking to invalidate a will based on the testator’s mental capacity can support his objection with medical records, the testimony of treating medical professionals, the testimony of those who observed the testator such as family and friends, evidence of the testator’s statements, and other relevant evidence. Since the signing of a will in New York must be witnessed by at least two people, the witnesses can give testimony as to what they observed when the will is executed.
While medical testimony can be crucial evidence in proving lack of testamentary capacity, a mere diagnosis of a condition such as Alzheimer’s, vascular dementia, or traumatic brain injury that results in diminished mental capacity is not necessarily sufficient to prove lack of testamentary capacity. There are varying degrees of cognitive impairment, and even those with more advanced conditions can have moments of lucidity during which they can effectively execute a will. The objectant must provide evidence that at the time the will was executed, the testator was cognitively impaired.
In the Matter of the Probate of the Will of Leonard T Petix, 2007 NY Slip Op 51085(U), the Objectant, Anne Sammler who was the decedent’s granddaughter, claimed lack of testamentary capacity. To support her objection, she offered a medical note by the decedent’s doctor which stated that decedent was demented to the point where his driving was impaired, and two police reports, one where decedent had lost his car, and one where decedent had lost his wallet. The court concluded that while the evidence did show that the decedent did suffer from dementia, a dementia diagnosis and lack of testamentary capacity are not the same. In other words, proof of a diagnosis of dementia is not alone enough to prove lack of mental capacity as a dementia patient can have days where he or she functions well. A testator needs only a lucid interval of capacity to execute a valid will. Thus, the court rejected the granddaughter’s objection.
There is a similar standard for proving a claim of lack of testamentary capacity based on allegations that the testator was drunk. The objectant must show more than evidence that the testator was an alcoholic. The objectant must show that the testator was drunk at the time of he (or she) signed the will, or that he was suffering from cognitive impairment from alcoholism at the time he executed the will.
In the Matter of Herman, 734 N.Y.S.2d 194 (N.Y. App. Div., 2001), the objectants challenged the validity of the testator’s will based on lack of testamentary capacity because the decedent drank heavily. While there was evidence that the testator did indeed drink heavily, the objectant failed to show that the testator was drunk on the day the will was executed. The court found that the testator did indeed understand the nature and consequences of executing a will, that he knew the nature and extent of the property he had, and that he knew those who would be considered the natural objects of his bounty.Fighting a claim of lack of testamentary capacity
Will challenges can be complicated. You should not attempt to defend one without the counsel of an experienced lack of testamentary capacity attorney in New York. Will challenge based on lack of testamentary capacity are typically brought when the testator was quite old, was not too “smart,” or was “eccentric.” However, old age, weakness of intellect, or the eccentricities of the testator do not usually constitute incapacity to execute a will. Thus, will challenges that are based on mere observations of unusual behavior or making an occasional unwise decision is would not be enough for a Surrogate’s Court judge to find that the testator was mentally incompetent. Similarly, evidence of a diagnosis of a mentally debilitating disease in and of itself would be insufficient to prove lack of testamentary capacity.
The objectant must show that at the time the will was executed, the testator did not understand the nature and consequences of executing a will; did not know the nature and extent of the property that he (or she) was disposing of; and did not know whether who would be considered the natural objects of his bounty and his relations with them. As an experienced New York lack of testamentary capacity lawyer will explain, if the proponent produces evidence that the testator was mentally competent at the time the will was signed, and the objectant is not able to overcome the proponent’s evidence with contradictory proof, then the challenge should fail.Preventing a challenge based on lack of testamentary capacity
If you have concerns that someone might challenge your will based on mental incapacity, there are strategies to ensure that such a challenge fails. Mental capacity based will challenges general only occur when the testator is quite old. For example, many cases before New York Surrogate’s Court have a fact pattern involved a testator who was 75+ years old who changes a will that was executed many years prior, and then passes away soon after executing the new will. Disinherited relatives may then file will contests based on a variety of grounds including lack of testamentary capacity to try to get the new will invalidated. A strategy to prevent a will contest based on mental capacity would be to get a letter from your doctor dated on the same day of the will signing, in which your doctor states that you are mentally competent. Ideally, the letter from the doctor should address each of the factors related to New York’s standard for testamentary capacity: understanding who his family is, understanding the extent of his estate, and understanding that he was making a will and the impact of that will.
Regardless of the reason for challenging a will, wills are generally challenged because someone is not happy with its terms. A strategy for prevent a will contest that is in reality rooted in someone being angry or surprised by what is in your will, is to let your family know in advance who is getting what, and who is not getting what and the basis for your decisions. While those who are getting less than expected may still be angry, they are less likely to mount a formal objection in court if they are warned in advance about the contents of the will.
Another strategy for preventing a will contest based on lack of testamentary capacity is to include a “no-contest” clause in your will. A “no-contest” clause essentially penalizes any beneficiary who challenges the will by voiding that beneficiary’s bequest. Such a clause would not be a deterrent for non-beneficiaries.Contact the Law Offices of Stephen Bilkis & Associates
Whether you are considering challenging a will based on lack of testamentary capacity, or you need to defend a will that is being attack as invalid due to lack of testamentary capacity, it is important that you are represented by someone with experience. The seasoned lack of testamentary capacity attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have years of experience representing executors, beneficiaries, heirs, and other interested parties in matters related to contested estates, probated litigation, and other estate matters before the New York Surrogate’s Court. We will make sure that your interests are protected. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Staten Island, Manhattan, Bronx, Westchester County, Long Island, Brooklyn, and Suffolk County.